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BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONE, CHENNAI

APPLICATION No. 158 OF 2017 (SZ)

In the matter of

V. Ramasubbu
Advocate
Sri Sakthi Nagar
Krishnapuram
Tirunelveli – 627 001 …Applicant
Vs

1.Union of India
Rep. by the Secretary to Government
Ministry of Environment and Forest & Climate Change
New Delhi

2. The State of Tamilnadu

Rep. by Secretary to Government
Department of Environment & Forest
Fort St. George, Chennai – 600 003

3. The Tamilnadu Pollution Control Board

Through the Member Secretary, Chennai

4. The Joint Chief Environmental Engineer

Tamilnadu Pollution Control Board
Kappalur, Madurai

5. The District Environmental Engineer

Tamilnadu Pollution Control Board
Sipcot Industrial Estate, Meelavittan
Tuticorin

6. The District Collector

Tuticorin District

7. The Central Pollution Control Board

Through the Member Secretary
New Delhi
8. V.O. Chidambaranar Port Trust
Through the Secretary, Tuticorin

9. The Commissioner of Customs

Tuticorin

10. Union of India

Rep. by the Secretary to Government
Ministry of Commerce
New Delhi

11. Union of India

Rep. by the Secretary to Government
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Ministry of Finance
Department of Revenue, New Delhi

12. M/s. V Sterlite (I) Ltd.,

Sipcot Industrial Complex
Tuticorin …Respondents

Counsel appearing for the appellant

V. Ramasubbu

Counsel appearing for the respondents

For respondent No. 2 & 6 … Mr. E. Manoharan

For respondent Nos. 3,4 & 5 … Mrs. Rita Chandrasekasr

For respondent No.7 … Mr. R. Thirunavukkarasu

For respondent No.8 ... M/s. Abdul Saleem, S. Saravanan

For respondent No.12 ... M/s. Parthasarathy, Rahul Balaji

Madhan Babu, Vishnu Mohan

ORDER

Present

Hon‟ble Shri Justice Dr. P. Jyothimani, Judicial Member

Hon‟ble Shri P.S. Rao, Expert Member

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8th September, 2017

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Whether judgment is allowed to be published on the Internet .. Yes/No

Whether judgment is to be published in the All India NGT Reporter .. Yes/No

We have heard the learned counsel appearing for the applicant as well as the

respondents.

The prayer in this application is to direct the 12th respondent project proponent viz.,

M/s. Vedanta Sterlite (I) Ltd., to compensate the environmental damages stated to have

been caused by the company by invoking the „polluter pays‟ principle and also to direct

the said respondent to compensate the environmental damages caused by the said

respondent due to unnatural manmade disaster by blocking Upparu stream with copper

slag and also praying for other reliefs.

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2. It is an admitted fat that the 12th respondent was having „consent to operate‟ valid

upto 31.3.2017. However, it is stated that in accordance with the Rules and

Procedures, before the expiry of the said „consent‟ the 12th respondent has applied for

renewal of „consent‟ in January, 2017. It is stated that the said application was returned

in February, 2017 and after compliance it was represented in April, 2017. Ultimately,

the Tamil Nadu Pollution Control Board (Board) in the order dated 7.9.2017 renewed

the „consent‟ to the 12th respondent under the Water (Prevention and Control of

Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1974 which is

valid upto 31st March, 2018.

3. Therefore, in the said circumstances, prima facie, the applicant is entitled to raise

all the points which he has raised in this application, in the event of challenging the

„consent‟ granted in favour of the 12th respondent. This is particularly because the

points raised in this application are relating to the conduct of the Board which is

expected to be satisfied of compliance of requirements before granting „consent‟. It is

true that the Board has issued a show-cause notice on 14.3.2017 wherein it is stated

that the unit has gone for the excess production than the „consented quantity‟ of 875

TPD of Copper Cathode without any „permission‟ or „consent‟ from the Board. It is

further stated that irritation of nose was observed near FGDS area which is due to

spreading of SO2 gas escaping from the scrubber maintained by the 12 th respondent.

The concern of the applicant is that these issues raised in the show cause notice ought

to have been complied with by the project proponent and inspite of the non-compliance,

the Board has renewed the „consent‟ on 7.9.2017. However, it is for him to raise those

issues while challenging the „consent‟ order, if he so desires.

4. In the application there is an issue raised by the applicant that inspite of the

continuous Ambient Air Quality Monitoring Station (CAAQMS) and its operation for the

purpose of monitoring the Sulphur Dioxide (SO2), Nitrogen Oxide (NOx) and other

obnoxious gases, monitoring will be successful only if CAAQMS was not sealed by

respondents 3 and 7. It is further stated by the applicant that the Calibrated

Measurement Parameter can be changed by the Expert Engineers of the 12th

respondent factory very easily to show as if there is no emission of obnoxious gases. In

these circumstances, the on-line monitoring system of the Board as well as the Central
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Pollution Control Board (CPCB) can never be possibly operated for the purpose of

preventing the emission of obnoxious gases.

5. However, this apprehension of the applicant has been answered by the CPCB

in its reply in paragraph 6, 7 and 8 which are as follows:

“6. The averment in para 39 that the CAAQMS is not sealed is again not
correct. This respondent puts the applicant to proof of the same. The
further averments in para 40 on the tampering is again speculative and no
proof has been furnished by the applicant.
7. This respondent thus submits that the inspection made on 27-
28.12.2016 would go to show that this respondent has taken action and
carried out their duty of monitoring the activities of the 12th respondent as
well as the TNPCB. This respondent has also addressed a letter dated
21.2.2017 to the 12th respondent calling on them to comply with certain
pollution control norms. It is for TNPCB to ensure whether such
compliances have been made.
8. This respondent therefore submits that as a regulatory body, 12th
respondent have taken appropriate steps to ensure compliances of the
pollution control norms with respect to source emissions, as per the
inspection conducted dated 27-28.12.2016 under Surveillance of industries
based on Online Continuous Emission Monitoring System – SMS alerts.”

6. Be that as it may, it is as if the grievances of the applicant has no redressal and he

is left in lurch. The Authority before whom the „consent‟ order may be challenged, is

definitely entitled to enter into these issues to find out as to whether the environmental

disaster is being caused because of the activity of the project proponent.

7. The CPCB has raised another issue regarding the „authorisation‟ to be issued by

the Board under the Hazardous Wastes (Management, Handling and Transboundary

Movement) Rules, 2008. The CPCB has stated in its letter dated 21.2.2017 that the

„authorisation‟ granted to the 12th respondent project proponent has expired on

9.7.2013. However, the 12th respondent in its reply dated 25.4.2017 has clearly stated

that it has submitted online authorisation renewal application to the Board as per the

Hazardous and Other Wastes (Management and Transboundary Movement) Rules,

2016 and awaiting for the grant of ‟authorisation‟ and „consent‟ by the State Pollution

Control Board. On a reading of the ‟consent‟ order of the Board dated 7.9.2017 there is

nothing to show that the „authorisation‟ has been issued by the Board and it is the duty

of the Board to inform before this Tribunal as to whether such ‟authorisation‟ has been

granted or not.

8. Mr. Rahul Balaji, learned counsel appearing for the 12th respondent has

submitted that in fact the Board which has received the application for „authorisation‟
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from the project proponent, has issued „authorisation‟ under Hazardous and Other

Wastes (Management and Transboundary Movement) Rules, 2016 in respect of the

Copper ROD Plant of the 12th respondent on 24.8.2017 and a copy of the order has

been produced before this Tribunal. In so far as it relates to the Copper Smelter Plant

of the 12th respondent, according to the learned counsel, „consent‟ has been issued very

recently. We make it clear that in the event of absence of any „authorisation”, it is for

the applicant to work out his remedy in the manner known to law as and when he

approaches the appropriate authority for redressal of his grievances.

9. Learned counsel appearing for the applicant produced the judgment of the

Hon‟ble Supreme Court in STERLITE INDUSTRIES (INDIA) LTD ETC VS. UNION OF

INDIA AND OTHERS (Civil Appeal Nos.2776 – 2783 of 2013 dated 2.4.2013) which

relates to the 12th respondent unit being allowed to operate by the Hon‟ble Supreme

Court. The learned counsel has particularly referred to paragraph 39 of the judgment

wherein the Hon‟ble Supreme Court considering the magnitude, capacity and prosperity

of the appellant company imposed a compensation of Rs.100 Crores under the „polluter

pays‟ principle for operating the unit without renewal of „consent‟. When once the

Hon‟ble Supreme Court while dealing with the issue of absence of renewal of „consent‟

for the years 1997 to 2012, as correctly pointed out by the learned counsel appearing

for the 12th respondent, has given the direction which has been complied with and

unless it is brought to the notice of this Tribunal or appropriate authority that the

pollution still prevails because of the conduct of the 12 th respondent , there is no

possibility for this Tribunal to arrive at any other conclusion.

10. The other judgment of the Hon‟ble Apex Court which is relied upon by the

learned counsel appearing for the applicant is that of PARYAVARAN SURAKSHA

SAMITI AND ANOTHER VS. UNION OF INDIA & OTHERS (W.P.(C).No.375 of 2012

dated 22.2.2017 wherein the Hon‟ble Supreme Court has referred to various industries

in the country which are running without functional Effluent Treatment Plants (ETP) and

ultimately has given certain directions which include a direction to the Benches of the

National Green Tribunal to maintain running and numbered case files based on the

jurisdictional area and issue notice to those units which are running without functional
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ETPs and pass appropriate orders and continue to maintain the same. The operative

portion of the said judgement is as follows:

“13. We are of the view that mere directions are inconsequential, unless
a rigid implementation mechanism is laid down. We therefore hereby
provide that the directions pertaining to continuation of industrial activity
only when there is in place a functional primary effluent treatment plants
and the setting up of functional common effluent treatment plants within
the time lines, expressed above, shall be of the Member Secretaries of
the concerned Pollution Control Boards. The Secretary of the
Department of Environment of the concerned State Government (and
the concerned Union territory) shall be answerable in case of default.
The concerned Secretaries to the Government shall be responsible of
monitoring the progress and issuing necessary directions to the
concerned Pollution Control Board, as may be required for the
implementation of the above directions They shall be also responsible
for collecting and maintaining records of data, in respect of the
directions contained in this order. The said data shall be furnished to
the Central Ground Water Authority, which shall evaluate the date and
shall furnish the same to the Bench of the jurisdictional National Green
Tribunal.
14. To supervise complaints of non-implementation of the instant
directions, the concerned Benches of the National Green tribunal, will
maintain running and numbered case files by dividing the jurisdictional
area into units. The above mentioned case files will be listed
periodically. The concerned Pollution Control Board is also hereby
directed to initiate such civil or criminal action, as may be permissible in
law, against all or any of the defaulters.
15. Liberty is granted to private individuals and organizations to
approach the concerned Bench of the jurisdictional National Green
tribunal for appropriate orders by pointing out deficiencies in
implementation of the above directions.”

11. It is relevant to note that this Tribunal has already initiated action in

accordance with the direction of the Hon‟ble Supreme Court. It is true that no effluent

generating unit in this country can be permitted to run without functional Effluent

Treatment Plant. If such plant requires „consent‟, in the absence of such treatment plant

certainly the Tribunal as well as the Board are entitled to impose heavy cost and

consequential damages by way of „polluter pays‟.

12. Even though the learned counsel appearing for the 12th respondent would

submit that as on date the 12th respondent being a ZLD unit, it is not for this Tribunal to

find out the correctness or otherwise of the same in this proceedings. As stated above,

it is always open to the parties to raise this issue in appropriate proceedings. We make

it clear and make a request that as and when any aggrieved party approaches the

Appellate Authority against the „consent‟ order, the Appellate Authority may take note of
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the issues raised in this application and consider the same on merits and in accordance

with law. It is also needless to state that the Appellate Authority may also take note of

the contents of the show cause notice issued by the Board dated 14.3.2017 which

includes exceeding the permitted capacity of the product manufactured by the 12th

respondent.

13. There is one other aspect, as it is seen in the show cause notice dated

14.3.2017 wherein it is stated by the Board that the copper slag was found

dumped/stored along the Uppar Odai near the bridge of National Highway on Tirunelveli

– Thoothukudi Road in Pudukottai Village. It is stated that about 3.52 Lac Tons of

copper slag was supplied to one, A. Paul of Sawyerpuram by the project proponent for

levelling the site but dumping of copper slag was found on site during the time of

inspection.

14. The learned counsel appearing for the project proponent would submit that at

the time of inspection this has been taken note of by the District Collector and fixed

responsibility on the 12th respondent who has undertaken to remove the copper slag

which has an impact on Uppar Odai and it is stated that the said copper slag has since

been removed as per the undertaking given to the District Collector. It is for the Board

to inspect and find out as to whether the undertaking given by the 12th respondent is

complied with or not. If such copper slag is not removed, it is for the Board to take

appropriate action.

15. With the above direction, the application is closed. There shall be no order as to

cost. Consequently, pending M.A.No.112 of 2017 stands closed, as no order is

necessary.

Justice Dr.P.Jyothimani

Judicial Member

Shri P.S.Rao

Expert Member